[Updated and bumped to the top.]

This brief filed by challengers to North Carolina’s restrictive voting law was filed yesterday. The Supreme Court could act at any time.  We could well hear something later today or tomorrow.

This earlier post explained what’s at stake in this case and the state’s position as to why the Supreme Court should issue a stay.

The challengers’ response essentially makes two points. (1) The 4th Circuit properly interpreted and applied the scope of section 2 of the Voting Rights Act. and (2) Pointing to statements made to the press by some election officials since the 4th Circuit’s order restoring same day voter registration and out of precinct voting, it will not be a big deal to put these laws back into effect so close to the election.

What is most notable about the brief is what it does not say. The key issue in this stay decision, I believe, rests on how to read the Supreme Court’s earlier decision in Purcell v. Gonzalez, which cautions courts against changes in election law close to an election.  Purcell gets a brief mention in the introduction to the brief and then just a single paragraph in the body of the brief:

Third, contrary to Defendants’ vague and conclusory allegations that enforcing the Fourth Circuit’s injunction will cause “voter confusion,” a stay by this Court is more likely to cause the type of confusion this Court sought to avoid in Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam).5 Maintaining the status quo in November will not confuse voters, who are accustomed to same day registration and out-of-precinct balloting, which have been in effect since 2008 and 2006 ,respectively. The preservation of these practices will not risk “that qualified voters might be turned away from the polls,” id. at 4, but rather simply provide a “safety net” with “more opportunity to register and vote” such that “voters who are confused about whether they can, for example, still register and vote on the same day will have their votes counted.” Op. at 55 fn. 8. In other words, the only ways that SDR and out-of-precinct voting will affect the voters is to increase access among the voters who need them, without affecting other voters at all. It is for this reason that the Fourth Circuit rejected Defendants’ complaints about possible voter confusion: SDR and out-of-precinct voting simply provide voters with more options to ensure that their votes are counted.

FN 5: In Purcell, the Ninth Circuit overturned the district court’s denial of a preliminary injunction before the district court even issued its opinion. Id. at *3. This Court thus appropriately held that the Ninth Circuit could not have paid the proper deference to the district court’s findings of fact, nor could have concluded that the district court erred as a matter of law. Id. at *5 . This case could not be more different. The district court issued a detailed ruling on August 8, 2014. The Fourth Circuit deferred to all of the district court’s factual findings, most of which were undisputed. And the Fourth Circuit articulated, based on the district court’s opinion, that at least eight different legal errors that the district court made. Op. at 36-45.

Compare pages 17-18 of this brief in which challengers  the late introduction of Wisconsin’s voter id law rely much more heavily on Purcell.